Rowley v. City of Poughkeepsie — 106 A.D. 258

Majority

p. 258

Charles P. Rowley, Respondent, v. The City of Poughkeepsie, Appellant.

Headnote

Assessment of land in Poughkeepsie against a non-resident owner—the defect.is jurisdictional—it cannot be cured by subsequent legislation..

Charles P. Rowley and Charles--M. Rowley, neither of. whom resided in the ..city Of Poughkeepsie or Dutchess county, New York, were life tenants of land, located in that city, which land was occupied by persons residing in the tax; district of the city of Poughkeepsie. The land was assessed to Charles Ml, , Rowley. ' ,

Meld, that .the defect in the assessment .was jurisdictional and, as such, was'.not remedied by "chapter 234 of the Laws of 1904, which assumed to cure “ any irregularity, omission or error” relating to assessments of real estate in the city of Poughkeepsie.

Semble, that if the statute had assumed to cure jurisdictional defects in assessments,; it would have been "ineffective in that respect. '

Appeal by the.defendant, The City of Poughkeepsie, from a judgment of the Supreme Court in favor of the plaintiff, entered in. the office of the. clerk .of the county of Dutchess on the 27th "day of September, 1904, upon the decision of the court, rendered after a trial at the Dutchess County Trial Term, a jury having been waived,-with notice, of an intention to bring up for; review upon sueh appeal an .order-rpade..at the.Kings County Special Term and' entered in the office of the clerk of the. county óf, Dutchess on the 27.th. ;day of, September, 1904, directing the defendant to cancel certain certificates of tax sales, and to refund certain taxes received from the plaintiff. , .

Martin Heermance [William Morgan Lee with him on the brief], for the appellant.

Safford A. Crummey, for the respondent.

At the’ time of the assessments which were attacked in this action the lands, in- question belonged to the plaintiff," .Charles-P. Rowley, and to .Cliarles ¡M¡. Rowley as life tenants under the will of Addie.

p. 259

Charles M. Rowley. The charter of the city of Poughkeepsie provided for the delivery of the tax roll to the city treasurer, with a warrant annexed “ commanding him to receive, levy and collect the several sums in the roll specified as assessed against the person or property therein mentioned * * in the manner provided by law for the collection and levying of county taxes by town collectors.” (Laws of 1896, chap. 425, § 69.) A similar mistake, in inserting the name of a non-resident in the assessment roll as the owner of the land, assessed, was held to be fatal to the tax in Sanders v. Downs ( 141 N. Y. 426 ). The learned judge who tried the case .at bar has pronounced the error here to be a jurisdictional defect, and I do not see why he was not right under the authority of that case. The defect being jurisdictional, it could not be remedied by the curative statute relied upon by the appellant. (Laws of 1904, chap. 234, relating to taxes on real estate in the city of Poughkeepsie.) That act assumed by its terms to cure only “ any irregularity, omission or error relating to the making of such assessments.” It did not- attempt to deal with assessments void for lack of jurisdiction, and would have been ineffective in that respect if it had done so. (People ex rel. Barnard v. Wemple, 117 N. Y. 85 ; Hagner v. Hall, 10 App. Div. 581 ; affd. on opinion of Cullen, J., in court below, 159 N. Y. 552 .)

The judgment is also supported by the fact that during the years in which the assessments were made the property was occupied by tenants who were residents of the tax district; nevertheless it was assessed against Charles M. Rowley instead of against these occupants, as the law required.

We find nothing in the conduct of the plaintiff which estops-hini from the prosecution of this suit and we - agree with the learned trial judge that, upon the pleadings and the stipulation as to the facts on which the case was submitted, the plaintiff was entitled to recover back the moneys which he had paid to the city on account of the assessments in question.

IIieschbekg, P. J., Woodward, Jenks and Rich, JJ., concurred.

Judgment and order affirmed, with costs.

Cases cited

Hagner v. Hall 10 App. Div. 581 N.Y. App. Div. 1896-12-08 p. 259